Court of Criminal Appeal increases rape sentence from three to ten years with three years suspended.

THE COURT OF CRIMINAL APPEAL

Murray C.J. 67CJA/07

Charleton J.

Irvine J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL

JUSTICE ACT 1993

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

-v-

ADAM KEANE

RESPONDENT

JUDGMENT of the Court delivered by Murray C.J. on the 19th day of December 2007

This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993 for a review of the sentence imposed on the

Respondent in the Central Criminal Court on the 12th March 2007 following his conviction by the jury of the offence of rape. The sentence imposed by the

learned trial Judge was one of three years imprisonment suspended on his being of good behaviour in his own bond for €1,000 for a period of five years. (He

was also certified as a sex offender and placed on the Sex Offenders Register).

The D.P.P. brings this application as an independent public servant authorised by law to prosecute crimes and offences pursuant to an Act of the

Oireachtas adopted in accordance with Article 30.3. of the Constitution which otherwise vested the role of prosecutor in the Attorney General.

As in virtually every country, the Courts established by and in accordance with the Constitution have a hierarchal structure. This permits, inter alia, access

to the Courts at first instance and on appeal to a higher Court whose decision is then final and binding. Exceptionally there may be a further appeal to a

higher Court again, usually in limited circumstances, in one form or another, such as an appeal from this Court to the Supreme Court pursuant to s. 29 of

the Courts of Justice Act 1924.

Courts of appeal have long been seen as an important and essential element in calibrating the scales of justice and thus ensuring confidence in the judicial

process. Legal systems provide for an appeal from Courts of first instance not least because it is not assumed that Courts of first instance are infallible no

more than it is assumed Courts of appeal are. There is no human institution that enjoys such a brave assumption. Indeed when the Supreme Court relaxed

the doctrine of stare decisis (in AG –v- Ryan Car Hire Limited 1965 I.R. 642) Kingsmill Moore J. noted “If it could be safely assumed that all members of a

Supreme Court were perfectly endowed with wisdom and completely familiar with all branches of the law, to treat their judgments as infallible would need

but little justification. Judicial modesty has refrained from putting forward such a claim … .” Moreover, an appeal by a party who, rightly or wrongly, is

dissatisfied with a decision of a Court of first instance, in addition to providing the party with the benefit of a case being heard or examined a second time by

another Court, also brings finality to individual disputes before the Courts which is one of the objects of the administration of justice.

That is the structure which we are constitutionally bound to respect.

As regards sentencing, for a very long time only the convicted person had a right of appeal against the sentence imposed on an accused following

conviction on indictment. There were historical policy reasons for this which it is not necessary to consider here. Suffice it to say that, for public policy

reasons, the Oireachtas decided in 1993 that the Director of Public Prosecutions should, in the circumstances referred to in s. 2 of that Act have a right to

apply to the Court of Criminal Appeal to review the sentence imposed by the trial Court. That is the position in law.

Subsection (1) of that section provides “If it appears to the Director of Public Prosecutions that a sentence imposed by a Court … on conviction of a

person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence”.

Subsection (3) provides that on such an application this Court may either quash the sentence and in place of it impose on the convicted person such

sentence as it considers appropriate being a sentence which could have been imposed on the accused by the sentencing Court. Alternatively, it may refuse

the application of the D.P.P.

Having imposed sentence in this case the learned trial Judge went on to advise Counsel for the respondent that he should warn his client that “the Director

is very trigger happy in relation to appeals on the grounds of undue leniency. So it is quite probable that this is not the end of the matter.”

The Court considers this reference by the learned trial Judge to have been unfortunate as it may be understood as trivialising or lacking in the respect which

is due to the process of appeals designated as appropriate by the Oireachtas. Section 2 of the Act of 1993 established a process of access to a court of

appeal on the part of the D.P.P. in respect of sentences imposed by the sentencing Court. A Court should avoid using language that might be taken to

suggest the denigration of the exercise of a statutory function of appeal. Moreover no finding was made or any conclusion pointed to which could in any

sense justify the use of language suggesting that the right of appeal was being abused, which in any event is essentially an issue for the Court of Criminal

Appeal.

On the contrary, the Director’s application in this case far from being an abuse of the process of the Court is, as the Court’s conclusions set out below in

this judgment demonstrate, one which is well founded.

Background Facts

The offence of which the respondent was convicted is that he did, at a time unknown on the night of the 29th or 30th May 2005, at a certain address in

Ennis, Co. Clare have sexual intercourse with a female person who at the time of the intercourse did not consent to it and at the time he knew that she did

not consent to the intercourse or was reckless as to whether she did or did not consent to it, contrary to common law and as provided by s. 48 of the

Offences Against The Person Act 1861 and s. 2 of the Criminal Law (Rape) Act, 1981.

It should be noted at this stage that subsequent to the imposition of the suspended sentence by the Court of trial the respondent was brought before that

Court again and, after the learned trial Judge had made certain findings of fact adverse to the respondent, he set aside the suspension of the respondent’s

sentence and ordered that he serve the term of three years imprisonment. This latter Order of the trial Judge was in turn appealed to this Court by the

respondent. That is a separate issue with which the Court is not presently concerned. The sole question before the Court for present purposes is whether

the application by the D.P.P. pursuant to s. 2 of the Act of 1993 is well founded.

The essential facts concerning the rape of the victim were not in dispute at the trial although the accused maintained his plea of not guilty throughout. From

the outset of the Garda investigation into this offence, shortly after its commission, and throughout the trial the stated position of the respondent was that

he had no recollection whatsoever of the events immediately surrounding its commission due to the fact that he had earlier, during the evening prior to the

offence committed, consumed a considerable amount of alcohol and also taken some drug described as MDMA and referred to in the trial as being a form

of ecstasy. There was in any event cogent evidence from the victim herself as well as expert evidence which showed that the DNA profile derived from a

semen sample taken from the victim matched the DNA profile of the respondent.

The victim, Miss Y, was at the time of the offence a 33 year old single woman who lived on her own with three young children on a housing estate in Ennis,

Co. Clare. The children were aged about 10, 8 and 4 at the time. At that time Miss Y had been “essentially living with”, as it was put at the trial, her

boyfriend Mr. M since September 2004. He had previously been a boyfriend of Miss B. At the time of the offence Miss B’s boyfriend was the respondent.

Mr. M was not residing in the victim’s house around the time of the offence because of an argument which had occurred between them. Miss B lived in a

house on the same housing estate nearby to Miss Y’s.

Although the respondent and Miss Y knew one another from the locality and mutual friends, especially through Miss B, and he had previously been in her

house, there had never been a close or intimate relationship between the two of them.

On the evening of May 29th 2005 the victim, Miss Y, had put the children to bed by 9.30 p.m. and decided to go to bed early herself shortly after that.

She suffered from severe deafness since childhood and always wore a hearing aid but did not do so when she went to bed because it was uncomfortable to

wear in bed. She always slept with the light on and had a landing or bathroom light on with the door to her own bedroom left open. Due to her deafness she

would not hear the children if they woke up in the middle of the night but if they came out of the room the lights enabled them to readily see her in her bed

and they could come straight into her.

The offence was committed between midnight and 1.00 a.m. There was evidence at the trial that Miss Y woke up and was conscious of a male person in

her bed who was cuddling up to her and had his arm around her waist. She had had an argument with her boyfriend M. and she thought that “[M] is back

that is good”. There was no conversation and she went back to sleep. The next thing which occurred was that she woke up with a man on top of her having

sex with her. Initially she assumed it was M but soon realised that it was not, noticing, inter alia, that unlike M the man had tattoos on his arm and he had

different hair. She panicked and pushed the man off her and felt his penis sliding out of her. She got out of bed. She found the bedroom door had been

closed and on running out of the room she found the lights had also been turned off outside. She turned on the lights and stood in the bedroom doorway

and saw the respondent sitting on her bed with no pants on. She screamed at him and said “Adam what are you after doing, I’m telling …(Miss B the

respondent’s girlfriend). She also told him she was going to call the Guards. She later told the Guards that he looked dazed and in her evidence said he

gave the impression that he felt there was no great problem. Miss Y left the house in a state of panic failing to make contact with Miss B, spoke to another

person on the phone and eventually the Gardai arrived. The respondent had left the house by this time. There was also evidence that the lock on the rear

door to Miss Y’s house had been broken for some time so that over a period it could be opened at any time from the outside and that this was the manner

in which the respondent had gained entry to the house.

After leaving the victim’s house the respondent went to the nearby house of his girlfriend, Miss B. Having woken her up and been admitted to the house he

gave no explanation, although asked for one, as to why he had called on her so late and had not gone to his own home. Miss B told him to sleep on the

couch, which he did. She thought he was drunk. Not long afterwards three Gardai arrived to interview the respondent. He was asleep and was woken up.

The respondent, who did not give evidence at the trial, told the Gardai in the course of interviews subsequent to his arrest how he had drunk a considerable

amount on the Sunday evening but could remember nothing from a time just before he left a bar where he had been drinking to the time when he woke up in

his girlfriend’s house with three Gardai present. He said that when drinking he had put a powder into his drink, which he understood to be something called

MDMA. When asked about the allegation that he had sexual intercourse with Miss Y without her consent he stated that he had no memory of this. He

could not remember. Asked if it was possible he could have done this he stated “Well in my personal opinion, I don’t think it is possible for me to do

something like that, because in all my life I never raised my hand to a girl or never been abusive towards a girl either, it goes against everything I stand for.”

He told the Gardai that he could not remember because he had blacked out. He had blacked out due to drink many times before. He also told the Gardai

that he knew Miss Y and had been to her house a couple of times.

Sentencing

In imposing sentence the learned trial Judge made particular reference to the case of The People (D.P.P.) –v- N.Y. (2002 4 I.R. 309). That was a decision

of this Court which imposed a suspended sentence for two offences of rape, in the particular circumstances of that case and in doing so allowed an appeal

against the sentence imposed by the learned trial Judge in that case, which is the same trial Judge as in this case.

In imposing sentence in this case the learned trial Judge observed that

“It is the experience of this Court that a surprising number of cases come before it in which a woman, for example, at a party goes to a

bedroom to rest and goes asleep and comes to, to find somebody inside her engaging in unlawful sexual congress. In the N.Y. case,

which has been referred to, I expressed the view that juries were reluctant to convict in these cases and that was certainly so for a

period of time. It does seem to me now that more juries are convicting in these cases. Their frequency is quite surprising and clearly

there needs to be substantial protection in place for a predator wandering around the bedrooms at parties and engaging in unlawful

sexual congress of this kind and also the other situation would be where somebody through drinks, drugs or a combination, drinks

himself into a situation where he does not know what he is doing”.

He then went on to add:

“In the N.Y. case I imposed a sentence of four years imprisonment which Mr. Denis Vaughan Buckley described on behalf of the

Prosecution as moderate and was intended by me to be moderate. The Court of Criminal Appeal set aside that sentence in its

entirety. It indicated that a trial judge in the case of anal and vaginal rape had to direct his attention in the first instance to a

suspended sentence and it also took issue with my having said I sought to be consistent with myself.” (The reference to four years

was then corrected to three years which was the sentence imposed in NY, nine months of which was suspended).

In proceeding to impose sentence the learned trial Judge added:

“Having regard to the approach taken by the Court of Criminal Appeal to this type of offence in the N.Y. case, I have to ask myself

whether or not I would be comfortable if I imprison this particular accused who is a young man with no previous convictions whose

attitude was that he thought what he did was out of character, what he was alleged to have done was out of character, but if the DNA

established that he had done it he would not resile from his responsibilities in the matter.”

The learned trial Judge added:

“This accused has no previous convictions, I would think that from his experience in this case he is unlikely to offend again. I think it

necessary that it come down clearly from this Court that people cannot wander around the bedrooms and behave in this predatory

fashion …”

The learned trial Judge expressed the view that the sentence of 3 years which he imposed in the N.Y. case was a moderate and lenient one and was so

described by Counsel for the D.P.P. It was, he noted, set aside in its entirety by the Court of Criminal Appeal.

“I would not be comfortable if I sentenced this man in the light of what happened in the N.Y. case. He is certificated as a sex offender

and remains certificated as a sex offender but entirely by reason of the approach taken by the Court of Criminal Appeal I sentence

him to 3 years imprisonment suspended on his being of good behaviour in his own bond of €1,000 for a period of 5 years.”

Decision

As is clear from the above the learned trial Judge based his decision on the N.Y. case, and saw that as determining his approach to the sentencing of the

accused in this case.

At the trial and in the course of argument in this appeal, Counsel for the D.P.P. had made detailed submissions differentiating the N.Y. case from the facts

and circumstances of this case. It was submitted on behalf of the D.P.P. that this case was one which required a custodial sentence.

Counsel for the respondent submitted that the sentence imposed by the learned trial Judge was one which he was entitled to impose having regard to the

circumstances in which the offence was committed and the circumstances of the accused. He referred to all the mitigating factors which the learned trial

Judge was entitled to take into account. Having done so, it was submitted, the sentence could not in all those circumstances be considered unduly lenient.

Before dealing with these issues the Court considers it appropriate to refer to the general approach which should be applied when imposing a sentence for

the crime of rape.

For a very long time the crime of rape has been considered as one of the most serious offences in the criminal calendar. Almost invariably it attracts a

substantial custodial sentence. A convenient starting point to the case-law on the gravity of this offence is the oft-cited judgment of Finlay C.J. in The

People (at the suit of the D.P.P.) –v- Edward Tiernan [1988] I.R. 250 at 253 when he stated:

“The crime of rape must always be viewed as one of the most serious offences contained in our criminal law even when committed

without violence beyond that constituting the act of rape itself. In Attorney General –v- Conroy 1965 I.R. 411 this Court stated that the

nature of the offence was such as to render unconstitutional any statutory provision which could permit it ever to be regarded as a

minor offence.

The act of forcible rape not only causes bodily harm but is also inevitably followed by emotional, psychological and psychiatric

damage to the victim which can often be of long term, and sometimes of life long duration.

Rape is a gross attack upon the human dignity and the bodily integrity of a woman and a violation of her human and constitutional

rights. As such it must attract very severe legal sanctions.”

Finlay C.J. went on to reiterate the long standing principle that the offence of rape must normally attract a substantial custodial sentence. He did so in

these terms:

“All these features, which I mention in summary and not as an attempted comprehensive account of the character of rape, apply even

when it is committed without any aggravating circumstance. They are of such a nature as to make the appropriate sentence for any

such rape a substantial immediate period of detention or imprisonment.

Whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case

and of the accused person before him, it is not easy to imagine the circumstance which would justify departure from a substantial

immediate custodial sentence for rape and I can only express the view that they would probably be wholly exceptional.”

In so stating Finlay C.J., whose judgment was that of the majority of the Court, was acknowledging that the ambit of a Judge’s obligation under the law to

impose a sentence which meets the particular circumstances of a case and of the accused person, even for an offence as grave as rape, does not in

principle exclude the possibility of a non-custodial sentence in wholly exceptional circumstances. The wholly exceptional circumstances must be such as

to justify a departure from the norm of a substantial custodial sentence.

However the Supreme Court in that case did not seek to set out a standard scale of sentences which might be appropriate in cases of rape. Finlay C.J.

noted:

“…having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in

their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar),

and the particular circumstances of the accused I would doubt that it is appropriate for an Appellate Court to appear to be laying down

any standardisation or tariff of penalty for cases.”

In order to address the issues in this application it is necessary to consider in some detail the judgment in the NY case.

Facts in the NY Case

The judgment of the Court of Criminal Appeal in the N.Y. case discloses that the appellant in that case had been drinking in a pub earlier on the evening of

the rape although drink did not play a major role in the offence. He left the pub in the small hours of the morning and from the street noticed that there was

a party in an upstairs flat. There was apparently some communication from the street between him and the people in the flat as a result of which he was

invited to join the party. It was a small flat and there were a number of young people at the party. Some time after 3.30 a.m. the appellant became engaged

in conversation with one of the girls at the party who was also one of the occupants of the flat. They started kissing on a bed in one of the bedrooms. As

the Court of Criminal Appeal in its judgment (Fennelly, Lavan and Abbott J.J.) noted

“At this stage, according to the accused several people were “crashed out”. In very unclear and disorganised circumstances the

accused and the victim ended up sharing a bed in an extremely small bedroom (probably about 8’ by 8’) with two beds. The accused

does not suggest that he and the victim shared that bed in any sense from which consent to sexual intercourse could be inferred.

There were people asleep in another bed. The accused removed clothing from the lower part of his body. However, it is clear, on the

best account from the point of view of the accused, that the victim, having engaged in kissing with him, fell asleep lying on her

stomach. There were other people asleep in the room.

The offences were committed while the victim was asleep. The accused fondled the victim and became sexually aroused. He

committed both vaginal and anal rape upon her. He did not ejaculate. He knew she was asleep. There was no question of her

consenting to any aspect of this behaviour.

The victim woke up with a jolt, realised what was happening to her, became shocked and distressed and told the accused to go home.

She ran from the room and, apparently, confided in her friends.” …”The accused acknowledges that he knew he had gone “too far”. “

…”He found paper and wrote a note saying “sorry to offend but my fault whatever I did”. He did not meet the victim and left the flat.”

The Court also recited that “Having been traced and interviewed by the Gardai, the accused made a full statement admitting the facts

of the case and his responsibility for them in their entirety. He expressed regret for what he had done. According to the Garda

evidence, the accused was very remorseful. When offered the chance of an identification parade, he said it was unnecessary. He

accepted his guilt and did not wish to put the victim through further trauma. As already stated he made no attempt to claim that the

victim had consented to his behaviour. He has maintained this position at all times. He has fully accepted his entire responsibility for

the crimes he committed.”

As regards the victim the Court noted:

“The victim was aged 19 at the time of this rape. She was a University student. She suffered psychologically rather than physically

from the rape. The psychiatric report diagnosed her as suffering from depressive illness, necessitating the taking of anti-depressants,

due to the rape, but after a year she had fully recovered. She declined her statutory right to give evidence.”

The Court also had particular regard to statements of the learned trial Judge when imposing sentence and cited from his decision as follows:

"I have indicated in many cases recently that every sentence passed in this court must be consistent with every other sentence

passed and that in broad terms the sentences to be imposed should be predictable. I am dealing here with two cases of penetrative

rape. The sentence I am going to impose in this case is less than what might be predicted from the document which I term the annual

report of this court in which all sentences passed by it are set out.

There have been a significant number of cases coming before this court in which girls, young girls, young women go to sleep at a

party and say that when they woke up they found somebody inside them. Juries have been remarkably reluctant to convict in this sort

of case and by and large, when this sort of case has gone to trial, it has resulted in an acquittal and this is at the hands of average,

evenly sexually mixed juries. It seems to me that if this case had gone to trial and taken the usual course that happens in these cases

and resulted in an acquittal, that the trauma of that would probably be more damaging to the victim in this case than anything that

happened on the night. The accused in this case immediately regretted his actions and at the scene, left a note behind apologizing,

effectively identifying himself. He cooperated to a remarkable degree and took every step he could to spare the victim NY further injury

or trauma. This has all to be taken into account. On the other hand, I am nevertheless left in the position that I am dealing with two

penetrative offences of rape and that cannot be ignored.

He is of previous good character and no doubt had a great future ahead of him. He was of an enquiring mind, obviously, and a great

traveller and the effect of what I have to do will be devastating for him. I certify him as a sex offender, as I am required to do under the

Sex Offenders Act, 2001. The prosecution are not in this case seeking a post-release regime under the Sex Offenders Act, 2001,

which says a lot in itself. At the end of the day, however, I still have to have regard to the nature of the offences and the penalties

imposed in general by this court. Accordingly, on each count I impose a sentence of three years imprisonment to run concurrently.

Having regard to the fact that he has taken proactive steps not to occupy a trial date and accordingly left a slot available for the court

to deal with another person in which it has a backlog of sixteen months rising, I give him the usual consideration which I give to

everybody else in this situation and on that account unconditionally suspend the final nine months of the sentence."

The first question which the Court of Criminal Appeal addressed in that case was whether there had been an error of principle on the part of the learned trial

Judge when imposing sentence. It acknowledged that the crime of rape is one of the most serious crimes in the criminal calendar and that normally the

offence called for the imposition of a custodial sentence. The Court then went on to examine, not the period of custody imposed, but the process or

approach adopted by the trial Judge to the issue of sentence.

It went on to state:

“Nonetheless, the Court imposing sentence must not deprive itself of the possibility of identifying the exceptional case where a

custodial sentence may not be warranted. It is a truism that the Courts must sentence the offender and not the offence.”

The Courts then stated:

“This Court considers that, in this case, the trial Judge may inadvertently have given the impression that he was acting on the

constraint of a rule mandating a custodial sentence.”

The Court added:

“The trial Judge attached great weight to the need to be “consistent” and “predictable” and later with the need to “have regard to the

penalties imposed in general by this Court. In these passages, he does not appear to acknowledge the possibility that a non-custodial

sentence may be warranted.”

Later in its decision the Court went further and stated:

“This Court considers that the trial Judge closed the door even to the possibility of a non-custodial sentence, by insistence on the

need for consistency with the sentences imposed in the Central Criminal Court. Thus, he approached the question of sentence in this

case without leaving open the possibility that this was an exceptional case which a non-custodial case (sic) could be warranted.”

It is important to note that the Court in that case first of all identified an error of principle in the process of sentencing rather than an error in principle in the

actual sentence imposed. That is to say, the closing of the door on even a consideration of the possibility of a non-custodial sentence. It did not conclude

that the sentence actually imposed by the trial Judge, three years with nine months suspended, was itself wrong in principle. That was not the ratio of the

decision. If the Court of Criminal Appeal in the NY case had concluded that the trial Judge had not committed an error of principle by excluding the

possibility of a suspended sentence, but indeed had considered that option in the circumstances, it might well have left stand the sentence imposed as

falling within the range of sentence open to a trial Judge to impose within the ambit of his or her discretion. It is long established that a sentence is not

wrong in principle simply or only because the Court of Appeal might have imposed a greater or lesser sentence if it was itself acting as a sentencing Court.

That was the approach adopted by the Court in that case. As the Court itself put it “Having reached the conclusion that the trial Judge erred in this way, this

Court must now consider the appropriate sentence.” The Court also stated “The Court must in these circumstances impose such sentence as it thinks

appropriate at this time.” (emphasis added). That is provided for by s. 3 of the Criminal Procedure Act 1993 which provides that where the Court quashes a

sentence it may impose such sentence as it considers appropriate.

Thus, having set aside the sentencing decision of the trial Judge on the basis of an error of principle in the process of sentencing the Court then had to

substitute a sentence on the basis of its appreciation of all the particular circumstances of the case at that time. In short it was acting as the sentencing

Court as if it was sentencing the accused ab initio but taking into account that he had already served seven months in prison.

In imposing sentence the Court started from the position that the two counts of rape to which the accused had pleaded guilty “would normally

unquestionably merit a substantial term of imprisonment”. It took into account that the appellant in that case had in fact served a term of imprisonment of

over seven months and that he would bear the stigma of being registered as a sex offender pursuant to the Sex Offenders Act 2001. It then concluded:

“His early, indeed immediate remorse, his exceptionally honest acceptance of responsibility, including his plea of guilty, and his

general good character must weigh in the balance in his favour. It is of note that such an experienced trial Judge as Carney J. should

pronounce thus: “He co-operated to a remarkable degree and took every step he could to spare the victim any further injury or trauma.”

All of these matters persuade the Court that this is an exceptional case in all the circumstances, the Court will not interfere with the

length of sentence imposed by the trial Judge, but it will suspend the balance of the sentence on terms to be entered by the

accused.”

In the result the sentence served by the accused was 7 months rather than the 27 months envisaged by the trial Court. Accordingly it is clear that the first

and central point of the decision, as far as the Court in the NY case was concerned, was that the exceptional circumstances of that case meant that the

sentencing Court should not have excluded the possibility of a non-custodial sentence, notwithstanding that the starting point for a sentence for the crime of

rape is normally a custodial sentence. Having considered itself bound to set aside the sentencing decision of the trial Judge on that ground the Court was

then required to impose a sentence on the basis of its appreciation of the exceptional circumstances of the case as matters stood at the time of the

appeal. Having made its own appreciation the Court suspended the remainder of the appellant’s sentence. That represented the Court’s appreciation in that

particular case of the exceptional circumstances. Those exceptional circumstances stemmed not from one circumstance but from each and every element

of the combined circumstances which the trial Judge himself had identified when imposing a very modest sentence in the court of trial.

In exercising its own appreciation in the NY case the Court did not decide that a custodial sentence of some degree would always be wrong in principle in

similar circumstances. The principle in that case was decided in the first part of the judgment namely that the possibility of a suspended sentence, in the

wholly exceptional circumstances, should not automatically be excluded at least from consideration.

So far as sentencing generally for the offence of rape is concerned a sentencing Court must have regard not to one individual case but to the range of

cases, some of which have been cited here, governing sentences in such cases and then exercise its own discretion having regard to all the circumstances

of the case actually before it.

In the present case the trial Judge in the course of sentencing stated that the NY case“indicated that a trial Judge in the case of anal and vaginal rape had

to direct its attention in the first instance to a suspended sentence …” and went on to state “Having regard to the approach taken by the Court of Appeal to

this type of offence in the N.Y. case …”

It must be said that the NY case, as is patently clear, did not indicate an approach to be taken with regard to a “type of offence” or with regard to rape

generally (other than to say that it should normally involve a custodial sentence) but indicated an approach which should be taken with regard to a case of

rape in which there are wholly exceptional mitigating circumstances of the nature referred to in that case.

Moreover, this Court, in The People (DPP) –v- G.D. [2004] IE CCA 17, in its judgment delivered by McCracken J. (with Gilligan and O’Leary J.J.) found it

necessary to refer to a statement during the course of sentencing by the trial Judge in the G.D. case to the following effect:

“The probation officer, who furnished an extensive report, I think proceeded on the basis that this was a case where a non-custodial

sentence could not or would not be imposed, but the Court of Criminal Appeal seems to have directed that the starting point of ones

consideration as to whether it can be dealt with on that basis or not.”

In the G.D. case the Court, commenting on that observation, stated:

“This Court is satisfied that the Court of Criminal Appeal did not give any such direction in the N.Y. case. In fact, that case

emphasised that a custodial sentence should normally be imposed for such a crime.”

In the present case the learned trial Judge appears to have ignored this dictum of the Court.

Neither did the Court in the N.Y. case take issue with the principle that consistency in sentencing is an important part of the sentencing process. What it

did conclude is that it should not exclude from consideration by the trial Judge sentencing options related to the particular circumstances of the case. To

recall the words of Finlay C.J. in D.P.P. –v- Tiernan:

“…the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion

appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular

circumstances of the accused, …”

The Court is also satisfied that the facts and circumstances of this case are not, for sentencing purposes, similar to the particular combination of facts and

circumstances which arose in the N.Y. case.

Aggravating Circumstances

Without in any sense taking away from the seriousness of an offence of rape committed, in combination with other surrounding circumstances, by anybody

who, having consensually gone to bed with a woman at a party, to which he was invited, commits the offence of rape, the offence in this case was

committed in wholly different circumstances with different and more aggravating elements.

The victim in this case was a mother of three young children who, having put them to bed on the night in question, herself went to bed in the security and

safety of her own family home. If there is one place in everyday life that a person needs to, and is entitled to, feel safe and secure it must be in his or her

own home at night. This must be ten times more true for a mother responsible for three young children asleep in bed.

The respondent has been found criminally responsible for invading her family home and raping that young mother in her own bed with her children sleeping

nearby.

The respondent had known where she lived, had been in the house before and knew that she was hard of hearing. He, uninvited and illegally, entered the

house through a back door, which for some considerable time could not be locked due to a defect in the lock. He climbed upstairs, turned off the landing

light, which had been left on to enable the children asleep to have easy access to their mother’s bedroom in the case of need. He surreptitiously entered

her bedroom, crept into her bed and raped her. He violated the mother, her home, her family wellbeing and the sense of security which she was entitled to

expect for herself and her children in that home.

Thus this was not only a violation of the victim herself, with all the implications referred to at the outset of this judgment, but also the sense of security

which citizens feel they have for themselves and their children in the safety of their own home. The fact that the rape took place in these circumstances

was to have lasting additional and devastating effects on the victim as well as very negative consequences for her children.

The evidence before the Court of trial concerning the impact of the crime on the victim included the fact that she soon moved to her parent’s house with her

children where she remained in bed for six weeks during which time she was distressed by media coverage of the rape. She never returned to the house

where the rape occurred, as she would have found it too distressing to do so. She reported that she would never have felt safe there again and that she had

lost her independence. That is why she had to go back living with her parents. She eventually left her parent’s house and moved to another rented house

but did not feel safe there so she moved again. She now has an alarm in the house which she is living in with two guard dogs and the dogs sleep in the

bedroom.

Following the rape she has found it difficult to have an intimate relationship with her partner and that relationship subsequently ended. She is fearful going

anywhere on her own. She distrusts men with the exception of her father, brothers and former partner.

She found giving evidence at the trial distressing. She also found being away from her children for the week of the trial distressing. The evidence disclosed

that she had difficulty in coping with counselling available to her, as she found it stressful.

There was also evidence that she felt traumatised by the rape and felt her life was ruined. She was in a constant state of alertness and is easily startled.

Sometimes she stays in bed because she cannot be bothered to get out of bed and can go for days without eating. She had little energy and media

accounts of other sexual cases distress her because they remind her of her own.

She told the Court of trial that the rape “has had a huge impact on my life and my kids’ life”. She and her children had to leave the house which she had

lived in for nine years following the rape and she was distressed about that because they had to move to a new area and both she and her children lost the

friends they made in that area.

In effect, she and her children were driven out of their own home and neighbourhood by the actions of the respondent. All this seems to have been ignored

by the trial Judge.

She has never spoken to her children about what happened and she is particularly worried about her daughter, 12 years of age at the time of the trial, and

what she may know about it. In this context she remains distressed that in the panic of events immediately after the rape, she left the house for a short

while, leaving her children in the house with the man who had raped her.

As can be seen from this evidence, the rape not only had very serious consequences for the victim but has had continuing serious consequences for her as

a mother and her family. In contrast, according to the evidence in the NY case, while the victim had, of course, suffered serious consequences, she had

recovered fully from the psychological effects within one year.

Moreover, the respondent in this case, unlike the NY case, did not admit the offence from the outset, but maintained a plea of not guilty to the very end.

The trial Judge, when sentencing the respondent, referred positively to the attitude of the respondent, as expressed to the Gardai during interview, “that

what he was alleged to have done was out of character, but if the DNA established that he had done it he would not resile from his responsibility in the

matter”. The DNA did establish that he had intercourse with the victim, which of course had always been the victim’s own evidence. Whatever not resiling

from his responsibility meant, it did not at any stage entail accepting criminal responsibility for the offence of which he was ultimately convicted. Of course

the respondent was perfectly entitled to plead not guilty. The fact remains that an immediate admission of responsibility and an early plea of guilty, which

would have spared the victim the waiting for and going through a trial, which was available as a mitigating factor in the NY case is not present as a factor in

this case. This is not by any means the most significant factor differentiating this case from the NY case but it is one of many factors.

In the view of the Court all of the foregoing circumstances demonstrate that the circumstances of the offence and the consequences which it has had for the

victim are wholly different from those which pertained in the NY case and the Court is satisfied that the learned trial Judge was wrong in treating them as

somehow similar cases.

Undue Leniency

The task of a sentencing Judge is often a difficult and complex one. The law obliges him or her to have regard to all the salient features of the

circumstances in which the offence was committed, the nature of the offence and its impact on the victim and society so as to evaluate its gravity. The

sentencing Judge is also obliged to have regard to the particular individual who must be sentenced, his or her personal history and circumstances so that a

punishment which is proportionate and just may be imposed. There may be matters which the prosecutors consider to be of prime importance and other

matters which the defence considers to be of prime importance but it is for the Judge to adopt an independent evaluation of all factors. Apart from the case

of murder it will not be possible to refer to a predetermined term of imprisonment which ought to be imposed. Neither has it ever been the function of the

D.P.P. to propose that a specific sentence should be imposed. That is a judicial function and an issue which can only be determined when all relevant

factors have been taken into account and evaluated by the sentencing Judge in the exercise of his or her independent judicial functions. Counsel for the

D.P.P. is, of course, under a duty to bring to the Court’s attention all law and factors relevant to the sentence which may be imposed. The D.P.P. may also

assist the Court, which is a practice with a provenance of long standing, by submitting with reference to specific circumstances that those circumstances

are such as to warrant a custodial or a substantial custodial sentence or otherwise for the offence committed.

The sentencing Judge has to decide in each case the appropriate sentence within the general parameters of sentencing depending on the nature and

degree of aggravating or mitigating circumstances. Sentences are imposed each year in some 3,000 cases by the Courts on those convicted on

indictment, only a small proportion of which are appealed on the grounds of either severity or undue leniency. Of all those appealed only a minority are

successful. Of those cases only a small fraction receive media attention, as is inevitable, and they do not always reflect the generally high standard of

judgment exercised in the sentencing Courts, including by the trial Judge in this case, in often complex circumstances.

However, it appears to this Court that the trial Judge’s pre-occupation with the decision in the NY case distracted him from the essential particularities of

this case. The trial Judge made no reference in his sentencing decision to the impact which the crime had on the victim and her family life nor did he appear

to attach sufficient weight to the place and circumstances in which the rape was committed.

The Court is satisfied, having regard to the circumstances of the case, the particular circumstances of the respondent, that the well established principle

that a custodial sentence should be imposed for the offence of rape ought to have been followed, there being no facts or circumstances in the case which

could justify the exceptional and rare departure from that principle. Accordingly in imposing a suspended sentence in this instance the learned trial Judge

erred in principle.

In coming to that conclusion, the Court has taken into account the fact that the respondent had told the Gardai, in the course of their interviews with him,

that he could remember nothing of what happened on that night between the time he left the pub and was woken up and interviewed by the Gardai in the

early hours of the morning in his girlfriend’s house. He could, according to his own story to the Gardai, recollect events of the evening up to leaving the bar

and after his first confrontation with the Gardai but not those in between when the rape occurred. This was due he said, to the consumption of alcohol and a

drug at one stage in the evening. He had had, he claimed, blackouts before due to the excess consumption of alcohol when he could not remember what

had happened the evening before. Although the respondent did not give evidence himself at any stage concerning this matter before he was sentenced, as

indeed was his right, particularly so with regard to the trial, the learned trial Judge appears to have accepted, for the purpose of sentencing that that was the

position. This Court has proceeded on that basis. Although at the time when he was woken by the Gardai in his girlfriend’s house he may have had no

retrospective recollection of what had occurred for the aforementioned reasons there was no direct evidence as to his state of mind at the time when the

offence was committed other than that he was drunk and had also taken a drug with one of the drinks.

On the basis of the totality of evidence before it, including his account to the Gardai regarding his lack of recollection, the Jury convicted the respondent of

the rape of Miss Y which the learned trial Judge had properly informed them means a man who “has sexual intercourse with a woman who at the time of the

intercourse does not consent to it”, and, “at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or

does not consent to it”.

Having regard to the foregoing the Court is satisfied that the suspended sentence of three years imposed by the sentencing Court was unduly lenient, even

when all the mitigating factors, referred to below, are taken into account.

It now remains for the Court to consider what sentence it considers appropriate.

Mitigating Factors

The mitigating factors were first of all advanced comprehensively by Counsel for the respondent in the sentencing Court and further fully developed and set

out at the hearing of this application in support of the submission of Counsel that the sentence imposed by the trial Judge fell within the ambit of his

discretion which had been properly exercised in the circumstances of the case.

One of the factors relied on by Counsel was the age of the respondent at the time of the offence 18½ years and also the fact that he had no previous

convictions. He laid a certain emphasis on the co-operative attitude adopted by the respondent as regards the Garda investigation. It is correct to say that

he co-operated with the Gardai particularly with regard to the provision of forensic samples. As regards the rape he told the Gardai that he had no

recollection of what occurred after he left the bar in which he had been drinking – that he had blanked out after that and it was possible that he had

intercourse with the victim in her house. In answer to questions from the Gardai he had also stated “I can’t remember but I don’t believe that I would do

something like that, in all my life. I have never raised a hand to a girl. It goes against everything that I believe. I am sure that anyone that knows me would

say that as well.” He told the Gardai he did not think he was capable of committing such an offence. At one point he told the Gardai, although not accepting

that he had intercourse with the victim, that if he did do so and the blood test support this he would not believe it was rape. Also, as previously mentioned,

he stated that if the DNA tests implicated him that he would not resile from his responsibilities. It is also true that at the trial that, although the victim had to

give evidence as part of the prosecution case, he did not challenge the veracity of the victim. After conviction Counsel told the Court that the respondent

took full responsibility for what occurred and deeply regretted what had happened.

Counsel also emphasised that the respondent lives in a rural area in a rural community where everybody knows everybody else. The case attracted

widespread publicity in the local press as well as the national press. All of this coupled with the fact that he must be registered as a sex offender will mean

that the respondent will carry the shame of this offence with him, especially locally, for the rest of his life. This means that he has no future in the locality in

which he lives and probably no future in Ireland. His father lives in England and it is inevitable in the circumstances that he will have to go there and reside

there, (where indeed he had been for a short period after sentence) and work there and continue to live with the obligations that arise from being registered

as a sex offender. This means that he has thrown away the bright future he had in Clare and lost the option of residing with the rest of his family there. The

burden of the conviction is something which he will carry for the rest of his days in County Clare. It was also submitted that this was a case in which the

accused, as the learned trial Judge had found, was unlikely to offend again.

Sentence

The offence of rape is one of the gravest offences against society and the human integrity of the victim. The maximum sentence which can be imposed is

life imprisonment. The circumstances which may be attendant on the commission of the offence of rape are multifarious, and aggravating factors, when

present, variable and often dissimilar in nature or in their combination. It is one of those offences where it would at least be difficult, or as the Supreme

Court put it in the Tiernan case, inappropriate to lay down any general standardisation or tariff of penalties. Nonetheless the starting point for any Court

when imposing sentence is, as so often stated, that of a substantial custodial sentence. There are no circumstances in this case, relating to the offence or

the accused which the Court considers could in any sense give rise to even the consideration of a sentence other than a custodial sentence.

In The People (D.P.P.) –v- Drought (2007 IEHC 310) the Central Criminal Court reserved judgment in order to ascertain the features or factors which

tended to place those convicted for the offence of rape into particular ranges of sentencing from lenient, to ordinary, to serious to meriting condign

punishment. In doing so reliance was placed on reported decisions of our Courts and these are the only relevant precedents for sentencing purposes.

Assistance was also obtained from cases as reported in the media. Reference to the latter group of cases was, quite properly, qualified because as they

did not report all the facts and circumstances of the case and they cannot be regarded as a source of legal precedent. Nonetheless, with that qualification

in mind, they did provide some useful indicators for the purpose of the broad exercise involved in that case. The judgment did not purport to set standard

sentences or tariffs but is a valuable reference point in ascertaining the wide variety of factors, as mentioned above, which can influence sentencing in rape

cases. The incidents of aggravation and mitigation of offences can be so variable that no Court should consider itself bound by precedent on a rigid basis

and due weight should be given to considerations that at times can be unique to the features of a particular case. As this Court stated in The People

(D.P.P.) –v- R (C.C.A. Unreported 15th March 1999):

“As there are no universal standards applicable in determining penalties for rape or any other offence one must approach reported

cases and the analysis of the sentences imposed therein with considerable caution.”

While the offence of rape consists, by definition, of a grave physical assault on the victim it is true that the offence in this case was not aggravated by

additional or vicious physical assaults accompanying the rape which is often the case. However, the offence is aggravated by the fact that the victim, a

mother of three young children, was raped in her own bed in her own home in close proximity to her children by the man who had illegally entered it in the

dark in the early hours of the morning.

That had important and emotional as well as psychological consequences for the victim, which have already been referred to, and the mother and the young

children had to move out of the home and neighbourhood which they had enjoyed for nine years. They were removed from the proximity of friends and

neighbours which they knew locally. There were three occasions on which they moved house before moving into the house which they were at the time of

the trial. It is perfectly understandable that the mother in question would become a nervous mother fearful for her safety in her own home. This cannot have

but some negative consequences for the children also.

The fact that the respondent took drinks and some drugs so that he could not remember afterwards what had occurred does not absolve him from criminal

responsibility as the Jury correctly concluded in their verdict.

Any idea that a man can trespass by stealth into a home at night and rape a woman, and mother, taking advantage of the fact that she was asleep in her

own bed, can be treated as other than an aggravated form of rape should be set at nought. A crime of this nature in these circumstances although directed

against an individual tends to make others feel unsafe.

It is indeed unfortunate to say the least that a young man in his late teens with no previous criminal record should damage, in these circumstances, not

only the life of the victim and her family but that of his own family and himself. The fact that drink and drugs played a part in the evening in question does

not absolve him from his answerability to the law and society.

While his young age, the fact that he has no previous convictions and may be unlikely to offend again along with other matters are factors to be taken into

account it is nonetheless a serious offence with particular aggravating circumstances and effects. But for these mitigating factors a higher sentence than

that which the Court proposes to impose would be warranted.

In the circumstances the Court is of the view that the appropriate sentence which should be imposed in this case is one of ten years imprisonment.

With a view to encouraging the rehabilitation of this young man and in all the circumstances of the case the Court will suspend three years of that term of

imprisonment on his undertaking to enter into a bond to keep the peace and be of good behaviour towards all the people of Ireland during that time, and

undertaking to co-operate with his supervision by a probation and welfare officer during the post release supervisory period referred to below. The bond is to

be in the sum of €500.

Furthermore, the Court is of the view that when the respondent is released on completion of his sentence he should be subject to post release supervision

in the interests of further rehabilitation. Accordingly the Court considers, having regard to the provisions of section 29(1) of the Sex Offenders Act 2001 that

the respondent, on being released from his term of imprisonment, should for a period of one year commencing on the date of his release be under the

supervision of a probation and welfare officer.

For the purpose of s. 31 of the Sex Offenders Act the respondent should note that in the event of a further offence being committed by him during the

suspended three year period of his sentence he will be required to serve that three year period together with any further consecutive sentence imposed for

that offence. Section 33 of the Act of 2001 provides that should he fail, without reasonable excuse, to comply with any of the supervision period conditions

he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €1900 or imprisonment for a term not exceeding twelve

months or both. Such imprisonment, if it should happen, suspends the period of supervision and it will continue until it expires when he is released from

prison. Under the provisions of the Act of 2001 the respondent may apply to vary or discharge any of the conditions relating to his post release supervision.

In short, the respondent is sentenced to a term of ten years imprisonment with three years suspended on he entering into the aforementioned bond and he

will be subject to a period of one year post release supervision pursuant to the provisions of the Sex Offenders Act 2001. Against the background of the

serious circumstances of the offences in this case the Court has not considered what was found by the learned trial Judge to have occurred subsequent to

the trial as affecting the sentence now imposed. The sentence reflects the gravity of the offence itself in the circumstances in which it was committed by

this respondent. The sentence is to date from May 11th 2007, being the date when he went into custody

The Court will also make the consequential order of placing the respondent on the register of sex offenders.

With regard to the outstanding appeal in the separate matter concerning the decision to remove the suspension of the original three year sentence, referred

to at the outset, the Court, as a consequence of this judgment, will make the appropriate order setting aside that decision.